In July of this year, the Michigan Supreme Court
struck an unexpected blow for freedom; a decision, which hopefully will
restore a little sanity to the raging nationwide debate over private property
rights.

For more than two decades now, cities and counties
across America have been using their constitutional right of eminent
domain to forcibly take private property from its rightful owners, then
turn around and sell that same property to other private owners under
the pretense that doing so is a “public use”. Over the past couple of
decades, this abuse of power has occurred tens of thousands of times.

Local governments have defended their actions by
claiming that they were acting in the public’s best interest, because
each property so taken was allegedly developed to a higher and better
use by the new owners. These forced transfers of ownership were supposedly
a “public use,” because they (a) resulted in increased economic development,
and (b) resulted in more tax revenue for the local governments.

From the beginning of the Republic, the Fifth Amendment
to the U.S. Constitution has allowed the taking of private property by
government, provided that the taking was for public use, and provided
that the taking was accomplished through due process of law, including
paying the owner just compensation for the loss of their property. “Just
compensation” has generally meant fair market value in an arm’s length
transaction.

The principle behind the power inherent in eminent
domain was that no holdout property owner should be able to stand in the
way of the construction of necessary public infrastructure by refusing
to sell; or by demanding an exorbitant price for their property, thereby
extorting money from the taxpayers. eminent domain has always been a
bit unfair to the displaced property owner, but properly used it was and
is a necessary compromise in the tension between the rights of private
citizens and the interests of the public.

The founding fathers recognized the necessity of
sometimes forcing a citizen to sell his or her property to the government,
because they included a provision for such an event in the Bill of Rights
of the U.S. Constitution.

There have been many abuses of eminent domain over
the decades. Governments have abused this power to speculate on land for
which they had no immediate need; condemning it and then sitting on it
till the price went up. Governments have forced people who can’t afford
lawyers to sell their property for less than market value. Governments
have devalued land by zoning it for limited use, bought it, then rezoned
it for a higher use, making it worth many times what they paid for it.

On a broader scale, however, the entire exercise
of eminent domain began to go terribly astray, when local governments
started using their power to transfer ownership of property from one private
owner to another private owner; not taking property for public use, but
for the benefit of private investors.

The landmark decision in this debate occurred in
the Michigan Supreme Court in 1981 in a case called Poletown Neighborhood
Council v. City of Detroit. There the court decided that the City of Detroit
properly used its power of eminent domain to condemn nearly 500 acres
of residential and business property to sell to General Motors to build
a new auto plant.

Located on the 465 acres of land, which was forcibly
seized by the city and transferred to General Motors, were approximately
1,400 homes and more than a hundred businesses; all of which were uprooted
by the city and forced to relocate. Also, several churches were required
to relocate, some forcibly, with armed police officers dragging protesting
parishioners away.

Mind you, this condemnation and seizure was not
done so the city could build a library or public park, which would have
been bad enough. Rather, all of those churches and residential and commercial
properties were taken from private owners and sold to another private
owner, who merely promised to spur economic development, create jobs,
and increase tax revenues to the city.

Since that fateful 1981 decision, courts all across
the country have used Poletown as a basis for allowing similar takings
in their states. If the owner of a professional sports franchise wanted
to build a new stadium and couldn’t find a large enough parcel of land
where he wanted to build, no problem. He just called up his friends on
the local city council or county commission and asked them to use their
right of eminent domain to condemn the property, buy it, and then sell
it to him.

Such unconscionable abuse of government power has
become commonplace across America.

On July 30th of 2004, however, in a unanimous seven
to zero decision, the Michigan Supreme Court reversed itself and tried
to make things right, at least prospectively. In a case known as County
of Wayne v. Hathcock, the Michigan Supreme Court overturned its own precedent,
acknowledged the mistake it had made 23 years earlier, and declared that
taking private property to resell it to another private party is not a
public use after all.

The court decided that spurring economic development
and enhancing tax revenues were not really “public uses” and, therefore,
not legitimate or constitutional grounds for taking private property.
The justices said in their written opinion that their earlier decision
in the Poletown case was a “radical departure from fundamental constitutional
principles.”

The justices also wrote, “We overturn Poletown in
order to vindicate our constitution, protect the people’s property rights
and preserve the legitimacy of the judicial branch as the expositor, not
creator, of fundamental law.”

Did you catch that? The way I read that statement,
a state supreme court said in July of 2004 that it wanted to preserve
the legitimacy of the judicial branch of government by returning to the
courts’ traditional and constitutional role of interpreting the laws,
not creating them.

One can reasonably infer from those words that in
those justices’ opinion, a court that creates laws rather than exposits
them is not acting legitimately. Conservatives have known that forever,
but it is both shocking and refreshing to hear a state supreme court acknowledge
it.

Property rights activist, Rodney Stubbs of Salem
Oregon, brought another equally important Michigan case to my attention.
In a case known as Detroit Wayne County Stadium Authority v. Alibri, one
Frida Alibri, was coerced under threat of condemnation into selling her
property, so a sports stadium could be built.

As part of the deal, Ms. Alibri was promised that
the property would not be sold later to a private party. Notwithstanding
the promises made, after the transaction closed, ownership indeed was
transferred to a private party. Consequently, Frida Alibri sued to get
her property back.

The case went back and forth. The trial court decided
that Alibri should get her property back. The appeals court, however,
agreed with the Stadium Authority, saying it could keep the property.
Ultimately, the Supreme Court decided that the taking was not a legitimate
one after all, and Frida Alibri got her property back.

Like the A-Boy Electric case out of Oregon, where
the U.S. Supreme Court said that the City of Tigard was wrong when it
told A-Boy that they could not build on their property unless they deeded
a piece of their land to the city for a public bike or pedestrian path,
this was a victory for the little guy.

These Michigan cases are important ones and the
decisions should ripple through courts across the country as the original
Poletown decision did. The fact that the Michigan justices minced no words
in their decision should be a wake-up call to courts across the country
that they should reexamine their approach to this important issue.

In reality, what the Michigan Supreme Court decided
was just common sense. After all, what meaning is there to the right to
own private property, if government has the right to forcibly take that
property from you and sell it to someone else, simply because the other
party wants to use the property for a higher purpose than you? The very
notion fails the smell test.

Hopefully these historic decisions out of Michigan
signal the beginning of the end of at least this kind of judicial attack
on private property rights. Maybe these decisions are a sign that the
courts are beginning to realize that allowing governments to call anything
they want a “public use” and then take it makes a mockery of the Fifth
Amendment

One can hope. However, I remain a bit cynical. Environmental
activists, who are probably the most blatantly socialist of all “respected”
special interest groups, and their well-placed friends on the bench, will
not easily give up the ground they have gained in this arena; especially
in the more urban parts of the country.

Liberals have long realized that they can never
build the kind of utopian, socialist society that they envision for America,
unless they first gain control the use of private property or eliminate
the concept altogether. After all, the right to own private property is
the cornerstone of a free society. People who are allowed to own and control
property think differently than people who can’t. They are more independent;
more self-sufficient; harder to govern; even more willing to risk their
lives to protect and keep what they have.

Karl Marx acknowledged as much when he distilled
the essence of communism to one thing: the abolition of private property.
You cannot easily subjugate a people and make them work for the good of
all mankind, when they have the choice to work for their own good and
accumulate more stuff for themselves and their families.

The movement to destroy the concept of property
ownership in this country is an insidious one. Not only have the radical
environmentalists been working overtime through the public schools and
through the media to undermine the notion of private property, but many
conservatives, including many in the business community, have unwittingly
bought their line.

I can’t tell you how many times some conservative
friend has asked me to help them stop an “evil developer” from building
a bunch of new houses in the field or wooded lot across the street from
their home.

These shortsighted conservatives believe in property
rights until their neighbor wants to do the same thing with his property
that they have done with theirs. Then suddenly, the thought of houses
where a wooded lot once stood, blinds them to the principle involved.
Without blinking an eye, die-hard conservatives often use the coercive
power of government to limit their neighbors right to use his property
as he wishes.

It is common today for big retailers like Wal-Mart
and Costco to hire an army of lawyers whenever they want a building permit
for a new store. Why? Because the local conservative business community
routinely uses the power of government in an effort to keep the big retailers
out and avoid the competition. The very zoning laws the local businessmen
hated when they were trying to build their stores suddenly become valuable
weapons for keeping out the competition.

I experienced a real eye opener while giving a speech
to a homebuilders group in the Portland, Oregon area. I was railing against
Oregon’s oppressive land use system, which is probably the worst in the
country, when a well-dressed builder, who looked to be in his thirties,
stood to his feet and said, as best as I can remember his words:

Mr. Sizemore, the West was settled by rugged people
who crossed the plains and mountains and endured extreme hardship, all
in the hope of homesteading a piece of land and someday calling it their
own. Property rights were important back then.

But today, he said, the West is settled and times
have changed. Today, the very idea that any individual should own a piece
of private property is an obsolete one. It is time we began viewing property
in more of a community sense, rather than a private sense.

Such a statement may sound shockingly un-American
to you. Indeed, it is. Regretfully, however, it is increasingly becoming
a common view in this country.

Those who hold to it may or may not know it, but
they are playing with fire, for when our government ceases to serve its
primary purpose of keeping its citizens secure in their property, it ceases
to be legitimate or American.

Bill Sizemore is a registered Independent who
works as executive director of the Oregon Taxpayers Union, a statewide
taxpayer organization. Bill was the Republican candidate for governor
in 1998. He and his wife Cindy have four children, ages eight to thirteen,
and live on 36 acres in Beavercreek, just southeast of Oregon City, Oregon.

Bill Sizemore is considered one of the foremost experts on the initiative
process in the nation, having placed dozens of measures on the statewide
ballot. Bill was raised in the logging communities of the Olympic Peninsula
of Washington state, and moved to Portland in 1972. He is a graduate of
Portland Bible College, where he taught for two years. A regular contributing
writer to www.NewsWithViews.com.
E-Mail: bill@otu.org
Bill's Web site: www.Billsizemore.net

Property rights activist, Rodney
Stubbs of Salem Oregon, brought another equally important Michigan case
to my attention. In a case known as Detroit Wayne County Stadium Authority
v. Alibri, one Frida Alibri, was coerced under threat of condemnation
into selling her property...